SREEKUMAR DING v. OUSEPH.M.K. and OTHERS; SHAJEER.P.S.; THE NATIONAL INSURANCE COMPANY LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 30TH DAY OF MARCH 2012/10TH CHAITHRA 1934 MACA.No. 962 of 2008 ( ) -----------------------OPMV.2353/2004 of SPL.COURT FOR EC ACT CASES &MACT,TSR APPELLANT:: ---------- SREEKUMAR DING AT PADINJARE KUNDI HOUSE PO., PARALAM VENGINISSERY,THRISSUR=680575 BY ADVS.SRI.T.C.SURESH MENON SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS/RESPONDENTS: ------------------------ 1. OUSEPH.M.K.AND OTHERS MECHERI PADI, AVINISSERY, THRISSUR. 2. SHAJEER.P.S., S/O.SHAMSUDHEEN RESIDING AT PUZHANGARA IIIATH HOUSE, PO.CHIRANELLUR. THRISSUR. 3. THE NATIONAL INSURANCE COMPANY LTD., KOLLANNUR BUILDING THRISSUR BY ADV. SRI.LAL GEORGE BY ADV. SRI.BEPIN VIJAYAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.HEMA & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * *** M.A.C.A.No.962 of 2008 ---------------------------------------Dated this the 30[th] day of March 2012 ## **J U D G M E N T** ## **SHAFFIQUE,J** The claimant in O.P.(M.V).No.2353/2004 of the Motor Accidents Claim Tribunal, Thrissur is the appellant. According to the claimant, he sustained injuries in an accident involving a tempo van bearing registration No.KER-3225 driven by the 2[nd] respondent. It is alleged that the accident was due to the rash and negligent act of the 2[nd] respondent. On sustaining injuries, he was taken to the Metropolitan hospital, Thrissur where he was treated as an in-patient. Alleging that the 1[st] respondent, being the owner of the vehicle, is liable to compensate the petitioner, a claim petition was filed claiming Rs.1,50,000/- as compensation for the injuries sustained. Third respondent is the insurer of the offending vehicle. 2. Respondents 1 and 2 remained ex parte and the 3[rd] respondent insurance company alone contested the case. The Tribunal relied upon Exts.A1 to A9 and Ext.B1. No oral evidence 2 M.A.C.A.No.962 of 2008 was adduced by either parties. On the basis of Exts.A1 and A4, the F.I.R and charge sheet in respect of crime No.489/2004, the Tribunal found that the accident was on account of the rash and negligent act of the 2[nd] respondent. 3. On the basis of Ext.A5 wound certificate issued by Metropolitan Hospital, Thrissur the Tribunal found that the claimant had suffered the following injuries. i) fracture of right cuboid bone ii) comminuted fracture of lateral and medial cuniform bone right, iii) lacerated wound across the foot and the outer aspect of left foot 12 x 3 x 2 cm iv) multiple abrasion on both legs and foot 4. In regard to the claim for compensation, the Tribunal awarded a total amount of Rs.57,860/- as follows: |||Rs.| |---|---|---| |1.|Loss of earning|6,000/-| |2.|Expense for transportation|500/-| |3.|Expense for extra nourishment|500/-| |4.|Damages to clothing<br>|500/-| |5.|Expense for treatment<br>|20,600/-| |6.|Expense for bystander<br>|800/-| 3 M.A.C.A.No.962 of 2008 |7.|Compensation for pain and|10,000/-| |---|---|---| ||suffering|| |8.|Compensation for loss of|6,000/-| ||amenities|| |9.|Compensation for disability|12,960/-| |||-----------| ||Total|**57860/-**| |||**=====**| The tribunal also awarded 7% interest from 20/09/2004 till the date of actual payment with proportionate costs. 5. The appellant, dissatisfied with the award passed, has come up in appeal. It is contended by the learned counsel for the appellant that the Tribunal did not properly consider the monthly income of the injured. According to the claimant, his monthly income is Rs.4,000/- as he was running a bakery and stationary shop which is evident from Ext.A9. The second contention is that as per the medical certificate produced in the case namely Ext.A7, the claimant has permanent disability of 8%, whereas the Tribunal had assessed the whole body disability as 3% only which, according to the counsel, is far less than the actual percentage of permanent disability. The counsel also seeks enhancement of the other claims regarding expense for 4 M.A.C.A.No.962 of 2008 transportation, expense for extra nourishment and expense for bystander. 6. On the other hand, it was argued by the learned counsel for the 3[rd] respondent that the amount awarded is reasonable and therefore no interference is called for in relation to the aforesaid award. 7. The point for determination is whether the appellant is entitled to get any enhanced compensation over and above what is awarded by the Tribunal. 8. The first point, therefore, to be considered is whether the fixation of monthly income of the injured is proper or not. No oral evidence is seen adduced in the matter and the claimant relies upon receipt Ext.A9 in order to show that he was running a bakery and stationary shop. Ext.A9 is a receipt for payment of tax for the conduct of business which indicates that tax is paid for conducting bakery and stationary business. This document by itself would not show the income of the claimant. According to the claimant he was earning an income of Rs.4,000/- per month from his bakery business. However, no evidence is adduced in that regard and hence only a notional income can be 5 M.A.C.A.No.962 of 2008 taken for the purpose of computing the loss of earning and for compensation for disability. The Tribunal had taken Rs.2,000/as the notional income. Apparently, the claimant is running a bakery and stationery which is evident from Ext.A9. This is an accident which happened on 05/07/2004. In **Govind Yadav v. New India Assurance Co.Ltd [(2011) 10 SCC 683],** the Supreme Court had occasion to consider the monthly income of an unemployed person. That was a case where the accident occurred on 14/11/2004 and the claimant was a helper. He claimed that he was getting a salary of Rs.4,000/- per month. Though the said contention was rejected by the Tribunal and the High Court, the Supreme Court found that during the relevant time the minimum wages payable to a worker itself was Rs.3,000/- per month and in the absence of other evidence, Rs.3,000/- should have been taken as the notional income. Taking into consideration the judgment of the Supreme Court in the above case, we feel that a sum of Rs.3,000/- can be fixed as the monthly income of the claimant. 9. In regard to loss of earnings, the Tribunal had only awarded Rs.6,000/- considering the monthly income as 6 M.A.C.A.No.962 of 2008 Rs.2,000/-, for a period of three months. The appellant's claim is that he had suffered severe injuries on account of which he had lost income for about five months. Ext.A5 is the wound certificate issued from the Metropolitan Hospital, Thrissur which would show the nature of injuries sustained by the claimant. Ext.A6 series would show that he was admitted on 05/07/2004 and discharged from the hospital on 09/07/2004. He continued treatment on 14/7/2004 and 19/07/2004. He was again admitted on 21/7/2004 and discharged on 25/7/2004. It could be seen from Exts.A6, A7, A8 and A9, medical records and bills that he was hospitalised for about 8 days on different occasions and he had undergone different types of treatments over a period of time. From the nature of injuries and disability to the left foot it is possible that the claimant would have lost his earnings for a minimum period of five months. Even going by Ext.A7 disability certificate it could be seen that though the accident was on 05/07/2004, even as on 01/06/2007, the claimant has suffered permanent physical disability Therefore we fix the loss of earnings at Rs.3,000/- x 5 = Rs.15,000/-, thereby giving an additional compensation of Rs.9,000/-under this head. 7 M.A.C.A.No.962 of 2008 10. Reasonable amount has been awarded under the head of expense for transportation, expense for extra nourishment and damages to clothing and we are not inclined to interfere with the same. In regard to expense for treatment, the entire amount covered by the bills have been paid. In regard to expense for bystander also, he was an in-patient only for 8 days and therefore the award of Rs.800/- is reasonable. In regard to compensation for pain and suffering, the tribunal awarded Rs.10,000/-. Considering the nature of injuries, the amount awarded under this head is reasonable. In regard to compensation for loss of amenities also, fair amount has been awarded by the Tribunal considering the nature of injuries suffered and therefore the same does not require interference. 11. In regard to compensation for disability, since we have fixed the monthly income of the claimant at Rs.3,000/-, we take the annual income of the appellant as Rs.36,000/(Rs.3,000/- x 12). According to the learned counsel, the total disability of 8% as seen in Ext.A7 certificate ought to have been taken for the purpose of computing the compensation for disability. For the purpose of awarding compensation for 8 M.A.C.A.No.962 of 2008 disability, the whole body disability is to be taken into consideration. In Ext.A7, the disability of 8% is considered with reference to the injuries on the left foot. In that view of the matter, the Tribunal is justified in finding that 3% can be taken as the whole body disability for the purpose of assessing compensation for disability. Under these circumstances, the compensation for disability is fixed as Rs.36,000/- x 3/100 x 18 = Rs.19,440/-. Therefore the claimant is entitled to get an additional compensation of Rs. 6480/- under this head. 12. The above discussion would lead us to the conclusion that the appellant is entitled for a further amount of Rs.15,480/as per the details shown below: Compensation for Loss of Rs.9,000/- Earnings (Rs.15,000/- minus Rs.6,000/-) Compensation for disability (Rs.19,440/- minus Rs.12,960/-) ## **Total** Rs.6,480/- ----------------- **Rs.15,480/-** ======= 13. In the result, a) This appeal is allowed in part. 9 M.A.C.A.No.962 of 2008 - b) The appellant is allowed to recover a further amount of **Rs.15,480/-** (Rupees fifteen thousand four hundred and eighty only) in addition to the amount already awarded by the Tribunal with interest at the rate and for the period as directed by the Tribunal. - c) The 3[rd] respondent is directed to deposit the amount before the Tribunal. ## **(K.HEMA, JUDGE)** **(A.M.SHAFFIQUE, JUDGE)** jsr M.A.C.A.No.962 of 2008 10 M.A.C.A.No.962 of 2008 11 **(K.HEMA, JUDGE)** **(A.M.SHAFFIQUE, JUDGE)** jsr M.A.C.A.No.962 of 2008 12 13 M.A.C.A.No.962 of 2008 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010